CHAPTER 13OA DOMESTIC VIOLENCE (PROTECTION ORDERS)

Transcription

1 1 L.R.O Domestic Violence (Protection Orders) CAP. 13OA CHAPTER 13OA DOMESTIC VIOLENCE (PROTECTION ORDERS) ARRANGEMENT OF SECTIONS Short title. Definitions. Pk-otection order. Application for protection order. Affidavit evidence. Form of orders. Matters to be taken into account. Notice to respondent. Explaining of proposed order to respondent. Ouster order. Breach of protection order. Power of arrest. Prosecution instituted by summons. Power to enter domestic premises. Criminal proceedings. Duration of order. Variation and revocation of orders. Jurisdiction.

2 CAP. 13OA Domestic Violence (Protection Orders) L.R.O sfclia 19. Restriction on publication. 20. Evidence. 21. Bail. 22. Appeal. 23. Ownership of property. SCHEDULE

3 3 L.RO Domestic Violence (Protection Orders) CAP. l3oa ss. l-2 CHAPTER 13OA DOMESTIC VIOLENCE (PROTECTION ORDERS) An Act toprovidefor thegranting ofprotection orders in circumstances MM surrounding domestic violence and for related matters. [13th February, in=- 1. This Act may be cited as the Domestic Violence (Protection S~ti&. Orders) Act. 2. In this Act, Dcf~cms. child includes an adopted child, a stepchild or a child who is a member of the household of the complainant and is treated as such by the complainant and the complainant s spouse; clerk means the clerk of the Court; complainant means a person who applies under this Act for a protection order; Court means the Magistrates Court having jurisdiction to hear the application; protection order means an order made under section 3; harassment includes (a) the intimidation of a person by (i) pexsistent verbal abuse; (ii) threats of physical violence; (iii) the malicious damage of the property of a person; or

4 s.3 CAP. l3oa Domestic Violence (Protection Orders) L.R.O (iv) any other means; (b) the persistent following of a person about from place to place; (c) the hiding of any clothes or other property owned by or used by a person or the depriving of a person of the use thereof or the hindering of a person in the use thereof; or (d) the watching or besetting of the house or other place where a person resides, works, carries on business or happens to be, or the approach to the house or other place; spouse includes a party to a relationship where the parties are living with each other in the same household as husband and wife. 3. (1) Where on an application made in accordance with section 4 in respect of a person, the Court is satisfied on the balance of probabilities that a person (a) has engaged in or has threatened to engage in conduct that is capable of constituting a criminal offence or an attempt to commit a criminal offence against the spouse, former spouse or child of that person or some other member of the household under any law; or (6) -has engaged in conduct that may reasonably be regarded as harassment of the spouse, former spouse or child, or other member of the household, and unless that person is restrained, is likely to engage in further conduct that would constitute that or another offence referred to in paragraph (a) or (b), it may make an order, in this Act refer& to as a protection order, restraining the person from engaging in that conduct or in similar conduct. (2) Subject to subsection (3), on an application for a protection order under subsection (l), the Court may where it considers that it is necessary to do so in order to ensure the safety of the spouse or child pending the hearing and determination of the application, make an interim protection order before considering the application.

5 5 L.R.O Domestic Violence (Protection Orders) CAP. 13OA s.4 (3) The Court shall not make an interim protection order under subsection (2), unless the application for such an order is supported by oral evidence on oath or by evidence on affidavit given by the complainant. (4) Subject to section 16( 1) and 18(3), a protection order made by the Court under subsection (1) may be for such period of time as the Court considers necessary, but may, on the application of the complainant or the respondent, be varied or revoked. 4. (1) An application for a protection order in accordance with $$-ian Form 1 in the Schedule may be made by way of complaint by SF (4 the spouse or former spouse of the person against whom the W order is sought where the offence was committed or the harassment conducted against that spouse or a child of the household; (b) (c) (4 W any other member of the household, not being a spouse or child; the Commissioner of Police; with the leave of the Court, a person other than a person mentioned in paragraph (a), as agent for a person to whom that paragraph applies; or a Child Care Officer or Welfare Officer on behalf of a child against whom the offence was committed or the harassment conducted. (2) The person against whom the order is sought shall be the respondent to the application. (3) Where an application for a protection order has been made to the Court under subsection (l), the Court shall issue a copy of the application tctgether with a summons in accordance with Form 2 set out in the Schedule, to the respondent forthwi$ to be served personally ~~RXMEon the respondent. THE LAWS OF BARBADOS Riukdbylk Gxernmm Prim. Bay Sheet, SL Midd. bythcautkmdydb- of B&da

6 CAP. 13OA Domestic Violence (Protection Orders) L.R.O s&&de. (4) Where it appears to the Court that it is not reasonably practicable to serve personally on the respondent a copy of an application for a protection order, the Court may (a) order that the copy of the application be served by such other means as the Court thinks just; (b) make an order for substituted service. (5) Notwithstanding anything in this Act, any document required to be served under this Act may be served by an attorney-at-law or his agent. (6) Where it is proved to the satisfaction of a magistrate on oath that the summons and the copy of the application referred to in subsection (3) or (5) was served on the respondent within what appears to the magistrate to be a reasonable time and the respondent failed to appear at the time and place appointed for the hearing, the magistrate may (a) proceed to hear and determine the matter in the absence of the respondent; or (b) where the Court is satisfied, having regard to the information before it, that it is appropriate to do so, adjourn the matter and issue a warrant for the respondent to be apprehended and brought before the Court. (7) Where a complainant is a person referred to in paragraph (b), (c) or (d) of subsection (l), a protection order shall not be made in respect of the application unless notice of the application in accordance with Form 2 of the Schedule was given to the spouse against whom the offence was committed or the harassment was conducted or to any other interested party concerned. (8) An application for a protection order shall be heard within 2 days after the date of service of the application or as soon as practicable thereafter. -

7 7 L.R.O Domestic Violence (Protection Orders) CAP. 130A ss (1) Evidence on an application for a protection order may be given on affidavit. (2) It is not necessary to call a person who made an affidavit pursuant to subsection (l), to give evidence unless a party to the proceedings or the Court so requires. 6. (1) Subject to this Act, a protection order may include s provisions restraining the respondent (b) (c) (4 W 69 (2) (4 from being on premises on which the complainant for the protection order or the child in respect of whom the order was made, resides; from being on premises that are the place of work of the complainant or the place of education or work of the child in respect of whom the order was made; from being in a specified locality, being a locality in which premises as mentioned in paragraph (a) or (b) or any other premises the Court deems it necessary to specify, am situated; from approaching within a specified distant? of the complainant or the child in respect of whom the order was made; where the person continues to reside with the complainant or the child in respect of whom the order was made, from entering or re maining on the premises, while intoxicated or under the influence of a drug; from causing another person to engage in the conduct referred to in paragraph (a) or (c) of subsection (3); A protection order may require the respondent to (i) leave the premises referred to under paragraph (a) of subsection (1);

8 CAP. 13OA Domestic Violence (Protection Orders) L&O (ii) continue any legal or other obligation the respondent may have to pay the rent, mortgage, utilities or taxes of the premises referred to in that subparagraph where the respondent is asked to leave under su&pamgraph (i); (ii) allow the complainant to enter and remain on the premises referred to in paragraph (c) of subsection (1); or (b) specify conditions subject to which the respondent may be on premises or in a locality specified in the order. (3) A protection order that includes a provision mentioned in paragraph (a) of subsection (1) may also include a provision (4 W (c) (4 restraining the respondent from taking possession of personal property of either the complainant or the respon&n& being property that is reasonably needed by a member of the respondent s household; directing the respondent to give possession of such of that property as is specified in the order, to a specified member of the respondent s household; prohibiting the respondent from damaging property of the complainant or a child of the complainant or respondent; or prohibiting the respondent from causing another person to engage in the conduct referred to in paragraph (a} of (c). (4) Notwithstanding section 2, in paragraphs (b), (c) and (d) of subsection(l) complainant meansapersonagainstwhomtheoffence was committed or who was harassed. (5) A protection order shall, in each case, provide that the parties to the order or any child in respect of whom the order was made, attend the Family Services Division of the Welfare Department or such other Agency as the Court specifies, for appropriate professional coun4bng and therapy. -.

9 9 L.R.O Domestic Violence (Protection Orders) CAP. 13OA s.7 (6) Where a protection order has been made in accordance with subsection (5), the Family Services Division of the Welfare Department or any other Agency specified by the Court under subsection (5) shall forward to the Court a report setting out the dates on which counselling took place, the nature of the counselling and therapy carried out and the response given to the counselling and therapy by the parties to the order and any child in respect of whom the order was made not later than 1 month before the expiration of the order or at such time as the Court specifies. 7. (1) In determining an application for a protection order, the Court shall have regard to the following (a) the need to ensure that persons are protected from violence and harassment; (b) the welfare of any child who is a member of the respondent s household; (c) the need to preserve and protect the institution of marriage or a union other than marriage and to give protection and assistance to the family as a natural and fundamental group unit of society; (d) the accommodation needs of the members of the household; (e) any hardship that will be caused to the respondent or to any other person as a result of the making of the order; and (j) any other matter that in the circumstances of the case, the Court considers relevant. (2) In determining whether to make an order that includes a provision of the kind mentioned in subsection (2) or (3) of section 6, the Court shall also take into account the property, income and financial resources, and the financial obligations, of the complainant and the respondent. 22~;: h acomnl. (3) In having regard to the matters referred to in subsections (1) and (2), the Court shall consider the matters referred to inparagraphs (a) THEWWSOFBAEBADOS FtimdbyIk -F riea.b~yshost.st.micluel. by thcauthwitydtk- of Bxbda

10 CAP. IMA Domestic Violence (Protection Orders) L.R.O ss.8-9 and (b) of subsection (1) as being of primary importance. -. Notice to fespmdent. 8. (1) Subject to this Act, a protection order shall not be made by the Court unless the respondent has had actual notice in the Form 2 set out Schedule. in the Schedule, of the application for the order. Schedule. EXpbliIklg of roposed sfi%nt. (2) Where a protection order or an interim protection order is made or varied by the Court, the clerk shall forthwith (a) arrange for an order in the Form 3 or in the Form 4 as the case may be set out in the Schedule to be formally drawn up and filed in the Court; (b) cause a copy of the order referred to in paragraph (a) to be served personally on the respondent; (c) cause a copy of the order referred to in paragraph (a) to be forwarded to (i) the Commissioner of Police and to the police officer in charge of the police station that is situated in the jurisdiction of the place of residence of the complainant and respondent; and (ii) any other person who was a party to the proceedings. 9. (1) Where (a) the court proposes to make a protection order or an interim order, and (b) the respondent,is before the court; the Court shall, before making the order, explain to the respondent in language that he understands, the matters contained in subsection (2). (2) The matters referred to in subsection (1) are (a) the purpose, terms and effect of the proposed order; (b) the consequences that may follow if the respondent fails to comply with the terms of the proposed order; and

11 11 L.R.O Domestic Violence (Protection Orders) CAP.13OA ss.lo-12 (c) the means by which the proposed order may be varied or revoked. 10. (1) Where an agreement, including a mortgage or a lease of Ouster order. premises provides that, if the respondent ceases to reside in his or her place of residence, a person may take action that would be prejudicial to the interests of the respondent or a member of the respondent s household the person is not entitled to take that action if the respondent ceases to reside in the place of residence in compliance with a particular order. (2) Where the Court is satisfied on evidence before it that an agreement referred to in subsection (1) exists in relation to the respondent, the Court shall at the time of making an order, direct that a noticein accordance with Form 5 in the Schedule be sent by the Clerk schedule. of the Court to the person referred to in subsection (1). 11. Where (a) a protection order or an interim protection order is made and BPS& of the respondent (9 was present at the time the protection order or interim protection order was made, or (ii) was not present at the time the protection order or interim protection order was made, and a copy of the protection order or interim protection order has been served personally on the respondent; and (b) the respondent contravenes the order in any respect, the respondent is guilty of an offence and is liable on summary conviction to a fine of $5 000 or to imprisonment for a term of 12 months or to both. pmctectial order. 12. (1) Subject to subsection (2), where the Court makes a Powerof BlTCSt. protection order the Court may (a) where it is satisfied that the respondent has caused actual bodily harm to the complainant or to the child concerned as the case may be, THE LAWS OF BARBADOS RinkdbyQ Oovcamrtu Riar. Bay Smzet, St. Michal, by tbeaduitydtkgovmma of Barbada

12 s.13 CAP. 130A Domestic Violence (Protection Orders) L.R.O (b) where it considers that the respondent is likely to cause actual bodily harm again; and (c) where the complainant has applied for a power of arrest to be attached to the protection order either before or at any time during the hearing of the application, attach a power of arrest to the protection order. (2) No power of arrest may be attached to a protection order unless the respondent has been given notice that such a power has been applied for. (3) Where a power of arrest is attached to a protection order, a member of the Police Force may arrest without warrant a person whom he has reasonable cause for suspecting of being in breach of such a provision of the protection order by reason of that person s use of violence or of his entry into any premises or area. (4) Where a power of arrest is attached to a protection order and a person to whom the order is addressed is arrested under subsection (3) (a) he shah be brought before the Court within the period of 24 hours beginning at the time of his arrest, or, as soon as reasonably practicable thereafter, and dealt with in accordance with section 11, and (b) he shall not be released within that period except on the direction of the Court, but nothing in this section authorises the detention of that person at any time after the expiry of that period. Prosecution instituted by mmmons. 13. (1) A person mentioned in section 4 (1) may lay an information before a Court in accordance with section 11. (2) Where a prosecution for an offence under section 11 is instituted by summons, the summons shah require the person to appear to answer the information at a time not later than 72 hours after the time at which the summons is issued.

13 13 L.R.O Domestic Violence (Protection Orders) CAP. 13OA ss (3) Service of the summons referred to in subsection (1) shall be effected at least 24 hours before the time appointed in the summons for the hearing of the information. 14. (1) A member of the Police Force may, without warrant enter zf~ any premises for the purpose of giving assistance to any one present daneptic thereon P- (a) if he has reasonable grounds to suspect that a protection order is being violated, or (b) if upon the invitation of a person resident at the premises he has reasonable grounds to suspect that a person therein has suffered, or is in imminent danger of suffering, physical injury at the hands of some other person therein. (2) A member of the Police Force referred to in subsection (l), may without warrant, enter premises for the purpose of giving assistance to a person on those premises whom that member has reasonable grounds to suspect is in imminent danger of suffering physical injury or has suffered physical injury at the hands of another person. 15. The power of the Court to make a protection order or an interim ce protection order in respect of a person may be exercised notwithstand- proaedmgs ing that the person has been charged with an offence arising out of the same conduct as that out of which the application for the protection order arose. 16. (1) A protection order remains in force for such period, not rti exceeding 12 months, as the Court specifies in the order. (2) Where a protection order contains a prohibition or condition of the kind specified in section 6, the Court may specify different periods, being periods none of which exceeds the period specified pursuant to subsection (l), as the period for which each prohibition or condition is to remain in force. (3) Subject to this section, an interim protection order remains in force for such period, not exceeding 10 days, as the Court specifies in the order. THE LAWS OF BARBADOS Fhedbyms oorrmmsot Prile. Bay shut. St. htichd. bytkmtkdydms c+memmmt of Blrbdm

14 s.17 CAP. 130A Domestic Violence (Protection Orders) L.R.O (4) Where (a) the Court adjourns the hearing of an application protection order; and (b) an interim order is in force in respect of the respondent, for a the Court may, by order, extend the period for which an interim order is to remain in force until the date fixed for the further hearing of the application. (5) An interim protection order made on an application under section 3, ceases to be in force (4 (W (C) where a protection order is made on that application and the respondent is present at the time the protection order is made, when the protection order is made; where a protection order is made on that application but the respondent is not present at the time the protection order is made, when the protection order is served on the respondent; or when the application is dismissed. - VarLtioa 17. and lwocuioll!2iize (1) Where a protection order or an interim protection order is in force, a party to the proceedings in which the order was made may apply to the Court in accordance with Form 4 set out in the Schedule for an order varying or revoking the order set out in the Schedule. (2) On an application under subsection (l), the Court may by order, vary or revoke the protection order or the interim protection order as the case may be. (3) The clerk shall cause a copy of an application under this section to be served personally on each person other than the applicant, who was a party to the proceedings in which the original order was made. (4) In determining whether to vary or revoke a protection order under subsection (2), the Court shall have regard to the matters specified in section 7 and to any report made pursuant to subsection (6)

15 15 L.R.O Domestic Violence (Protection Orders) CAP. 13OA ss of section 6 in relation to the parties. 18. (1) Nothing in this Act shall be construed as affecting any Jurisdiction. jurisdiction which the High Court may have in respect of the matters referred to under this Act. (2) Where a spouse has made an application for similar relief under section 91 of the Family Law Act, no application shall be made for * 214. a protection order under this Act. (3) Where a protection order is in force in respect of a person who files an application for similar relief under section 9 1 of the Family Law crp 214 Act that order shall remain in force until expiry and shah not be varied by the Court before expiry. 19. A person shall not publish in a newspaper or by broadcast or ~-3~ otherwise disseminate to the public the identity of a party to ti~n. proceedings in connection with a protection order or information from which the identity of such a party may readily be ascertained. 20. Notwithstanding any other law to the contrary, in any hearing EV&E of an application for a protection order made by a Child Care Officer or Welfare Officer under paragraph (d) of section 4( 1) in respect of a child, the spouse of the person against whom the order is sought is a compellable witness. 21. (1) Notwithstanding any other law to the contrary, where the M court is required to determine whether to grant bail in respect of an offence under this Act, the matters that it shall take into account include (a) the need to ensure that persons are protected from violence and harassment; (b) the welfare of the child, where the respondent or a victim of the alleged offence has custody of a child who has not attained the age of 18 years; and (c) any hardship that may be caused to the respondent or to members of the respondent s household if bail is not granted or a particular condition is imposed. THE LAWS OF BARRADOS Rp*dbytk t3vamma Fvir&er. Bay Saect. St. Miciucl. bytk.whahydikowsnuncntofbahaa

16 CAP. P30A Domestic Violence (Protection Orders) L.R.O ~~22-23 (2) The Court may grant bail on such terms and conditions as it thinks fit. Cap (3) Where (a) bail has been granted to a person upon conditions; and (b) the person contravenes or fails to comply with any condition the bail is thereupon forfeited and the respondent is liable to be rearrested. 22. (1) Subject to subsection (3), an appeal against an order made by the Court under this Act shall lie in the same manner as if it had been made under section 13 1 of the Magistrates Jurisdiction and Procedure Act. (2) Where an appeal against an order is made by the respondent under subsection (l), the Court shah impose in respect of any recognisance made by the respondent in relation to the appeal such conditions as it considers necessary for the safety and protection of the complainant. (3) An appeal under this Act does not lie from (a) the making, variation or revocation of an interim protection order; or (b) the refusal of the Court to make an interim protection order. 23. Nothing in this Act shall be deemed to have altered any right a snouse mav have to ownershin of nronertv.

17 17 L.R.O Domestic Violence (Protection Orders) CAP. 13QA * SCHEDULE Form1 (Section 4) IN THE MAGISTRATE S COURT FOR DISTRICT Domestic Violence (Protection Orders) Act, Cap. 130A APPLICATION FOR PROTECTION ORDER Between A. B. of Complainant C. D. of Respondent I ng the spouse of the respondent/mexnber of the respondent s household hereby apply for a protection order on the ground(s) that: complainant Taken and sworn before me this day of (Sifw~l h@imte for District TaB LAWS OF BARBADOS prizacdbymc -Raa.~StWC&St.hlidUd. bytkamhdydtk - of Bubda

18 CAP. 13OA Domestic Violence (Protection Orders) L-R Form 2 (Sections 4(3). 4(7) a&8(1)) IN THE MAGISTRATE S COURT FOR DISTRICT Domestic Violence (Protection Orders) Act, Cap. 130A NOTICE OF PROCEEDINGS Sdi%NS No. 19 Between A. B. of Complainant and C.D.of Respondent To the Respondent: An application under section 4 of the Domestic Violence (Protection Orders) Act, Cap. 130A for a protection order has been made by against you. A copy of the application is attached. The application has been set down for hearing on 19 at (time) at You are hereby summoned to appear at the abovementioned day of at the hours of in the noon to answer the complainant Court on the If you do not appear in person at the hearing of the application, the Court may (a) (b) deal with the application in your absence; or issue a warrant for your arrest to be brought before the Court. Dated 19. clerk of the Magistrates court

19 19 L.R.O Domestic Violence (Protection Orders) CAP.130A Form3 (Section 8(2JJ IN THE MAGISTRATES S COURT FOR DISTRICT- Domestic Violence (protection Orders) Act, Cap. 130A PROTECTION ORDER or INTERIM PROTECTION ORDER Between No. of 19 A.B. of Complainant and C.D. of Respondent The Court, having heard an application made by [name of complainant] under the Domestic Violence (Protection Orders) Act, Cup. I3OA in respect oft& conduct [or threatened conduct] of [name of respondent] towards [name of person to be protected]: Now the Court this day orders that, for [period] 1. [name of respondent] not engage in the following conduct: 2. [name of respondent] not engage in conduct that constitutes any offence referred to under section [name of respondent] comply with the following prohibitions and conditions: [specify prohibitions and conditions and any other period or per&is for which they are imposed] Dated 19. cierk of the Magistrates court THB LAWS OF BARBADOS Rimsdbylk Oovcrnmcla Plier, Bay sbkl. SC M*hrl. by tkadlmilyof~gwenkmd of Bubda

20 CAP. 13QA Domestic Violence (Protection Orders) L.R.O Form 4 (Section J 7) IN THB MAGISTRATE S COURT FOR DISTRICT Domestic Violence (Protection Orders) Act, Cap. 130A ORDER VARYING PROTECTION ORDER or INTERIM PROTECTION ORDER -. Between No. of19 A.B. of Complainant and C.D. of Respondent The Court, having heard an application made by [name of complainant] under the Domestic Violence (Protection Orders) Act, Cap. 130A in respect of the conduct [or threatened conduct] of [name of respondent] towards [name of person to be protected], and having on [date of original order] ordered that, for [period]: 1. [name of respondent] not engage in the following conduct: 2. [name of respondent] not engage in conduct that constitutes any offence referred to under section 3: 3. [name of respondent] comply with the following prohibitions and conditions: [specify prohibitions and conditions and any other period or periods for which they are imposed] Now the Court, on the application of [name of complainant] this day orders that the Protection Order [or Interim Protection Order] be varied as f0llows:,- Dated 19. (Signature) clerkofthemagisaawlcourt -.

21 21 L.R.O Domestic Violence (Protection Orders) CAP. 13OA FORM 5 IN THE MAGISTRATE S COURT FOR DISTRICT Domestic Violence (Protection Orders) Act, Cap. I3OA NOTICE TO EMPLOYER/LANDLORD/h4ORTGAGEE You are hereby notified that a protectionxxder has been made under the abovenatned Act against of your employee/tenant/mortgator. below. Your attention is drawn to section 10 (1) of the said Act which is set out Domestic Violence (Protection Orders) Act, Cap. I3OA 10. (1) Where an agreement, including a mortgage or a lease of premises provides that, if the respondent ceases to reside in his or her place of residence, a person may take a&on that would be prejudicial to the interests of the respondent or a member of the respondent s household the person is not entitled to take that action if the respondent ceases to reside in the place of residence in compliance with a protection order. (Signature) Clerk of the Magistrates Court. THBLAWSOFBARBADOS Ptimcdbymc Owrmmmr Prier, Bay Stlsct. SL Midmd, bytbr~oftko of Barb&n